All right, y'all.
Welcome back to the show.
It's Antiwar Radio.
I'm Scott Horton.
And our first guest on the show today is Marcy Wheeler, otherwise known as Empty Wheel.
She keeps a blog at EmptyWheel.net.
Welcome to the show, Marcy.
How are you doing?
I'm good, Scott.
How are you?
I'm doing great.
Appreciate you joining us today.
So your new piece is called FBI Conducts Threat Assessment on Antiwar.com Journalists for Linking to Publicly Available Document.
And you've got a great lawyerly rundown here of what all you could glean from between the redactions and between the lines of this newly foiled FBI document, which starts out about the Israeli movers and the FBI's investigation into their activities.
And then that's what led them, apparently, I think, to Antiwar.com.
And you did such a great piece here on this, explaining what all's in there.
I think I'll just be quiet and let you explain what it is you found.
OK, well, I should say I'm about to, maybe in an hour or so, do an updated piece.
So some of what I'm going to talk about, I'll show my work for on that piece.
OK, great.
I actually think what happened is that an agent in Newark was investigating some Pakistani terrorists.
And he did a search of, he or she, did a search of any public list showing that that terrorist was on a watch list.
And from that, got to the watch list that Justin had posted back in, what was it, 2003, in a story related to the Israeli movers.
So it's actually a Pakistani terrorist that first alerted the FBI, in this case, to antiwar.
And so they did this report.
And one of the things that they found, for example, was that St. Louis had also done an investigation or found the same watch list, again, for a terrorism investigation.
So I think what they were doing was saying, well, gosh, this antiwar.com guy has posted watch lists of Pakistani terrorists.
Are they posting it to alert them that they're under investigation by the FBI?
That's how it started.
But I think what happened after that is they did this investigation in 2004, which was right after the Israeli movers story, which is these five Israelis who were watching the World Trade Center come down and taking pictures, and the question is, are they Israeli spies, yada, yada.
So they had just reopened the investigation into the Israeli movers in the same office in Newark in 2004, just weeks before this agent investigating Pakistani terrorists did this search on antiwar.com.
Well, and that's the agent itself.
Is it not that they were reopening that investigation into the Israeli movers in 2004?
Yeah, that's one of the things that shows up in the other documents.
You know, so this whole document packet is 90 some pages long, and there's just like 30 pages that pertain to antiwar.com.
And the rest is this larger part of a file, which I think has five more parts to it, but the larger part of the Israeli movers file.
And there are documents in there basically reopening and transferring the investigation of the Israeli movers story.
Okay, I'm sorry to interrupt you there.
No, no, no.
And this is actually where it gets interesting, because the same office, the Newark office investigating Pakistani terrorists, and one of the reasons why I say that that's what generated this response is because if you look at the title of the document, for example, and who this report got forwarded to, they're all Pakistani terrorist squad people.
You know, they weren't forwarding it to investigative Israeli spies.
They were forwarding it to people investigating Pakistani spies.
So that's why it was interesting in the first part.
But then on page eight of the document, and I'm sure we can put links up for people to see this, there's a paragraph in there that talks about a piece Justin did, the terror enigma.
Okay?
And the last line of that says, an active investigation was conducted on the five Israeli nationals for a detailed report of this investigation C.
And there's a report, and the name of the report is redacted.
But if you look at that paragraph, there's X's and brackets, and, you know, and that the name of the report itself is bracketed.
And then if you look at the front page of the report done on antiwar.com, there's a note that says see page eight for, and it's crossed out, but you can read it, for real link.
So in other words, I think what happened was this, the reason this was FOIA, the reason this was released in a FOIA on the Israeli movers was because somebody within Newark said, hey, look, here's a reference to an investigation into the Israeli movers that we may or may not know about.
Put this in your file.
I see.
So that's how, so there's one, how antiwar.com got investigated, two, how it ended up in the Israeli movers file, and then three, and we can go on to talk about that.
But three is what else it shows that they already had about antiwar.com in April of 2004 when they did this search.
Right.
Because at some point in here, they refer to FISA documents on antiwar.com that already exist, right?
Well, we don't know.
There's probably actually, those four documents probably aren't, they're probably not pertaining to antiwar.com, because the file name on them is related to the Pakistani investigation.
So those are probably FISA documents, I mean, they might be.
I mean, maybe somebody was talking about antiwar.com, some Pakistani terrorist was talking about antiwar.com and said, hey, I know I'm under investigation because I saw this watch list that I found on their site.
I mean, it's possible it's something like that, but given the other context of the report, those four don't seem necessarily to be targeted at antiwar.com.
Now, the one confusing part of that is what I've been talking about so far is the main threat assessment done on antiwar.com.
Right, following that in the packet, there are these three internet postings that also have the same, that basically have the same cover letter, and that one also has the warning that says this document contains information obtained under FISA.
So, you know, I'm not sure whether they said that they were surfing under privilege of FISA or whether they consider these business records or what.
But it's really important for readers to understand that regardless of whether they used FISA against antiwar.com before this, because this investigation was a threat assessment.
So it was, you know, at that point, they aren't even allowed to do new FISA investigations.
They need to get to a preliminary investigation or a formal investigation.
But once they said we're doing either a counterintelligence, which is what the Israeli Movers investigation was, or a counterterrorism investigation, that all of a sudden gets beyond the bar of Patriot Act powers.
I mean, Patriot Act basically says you can use these powers, and it's not just wiretapping.
It's also, you know, you can look at business records, which pretty much means anything in this day and age.
It can also mean your geolocation.
They can go to a judge and say they don't even have to prove that antiwar.com has ties to terrorism or ties to intelligence.
All they have to prove in this day and age is that their desire to go use these Patriot Act powers stems from some connection to a counterintelligence or counterterrorism investigation.
So they don't even have to prove that antiwar has any connection to the Israeli Movers.
So that's a very important point, but never mind proving.
I mean, it used to be – if I understand you correct, Marcy, you're saying that.
It used to be they would have had to show the FISA court, if not probable cause, a reasonable belief as to why they think antiwar.com might be tied to some foreign power or foreign terrorist group.
Whereas now you're saying that the Patriot Act changed that.
Now all they have to say is somebody that we arrested in a counterterrorism investigation had looked at antiwar.com before.
And so now this is connected to that, and so we can use our counterterrorism, you know, the very low FISA bar instead of the Fourth Amendment bar for investigating antiwar.com.
Is that right?
The standard is slightly different for wiretapping than it is for business records.
All right, I'm sorry.
I'm the king of oversimplification, and now I've talked us right up to the wall.
Hang tight right there, everybody.
It's Empty Wheel, Marcy Wheeler, EmptyWheel.net, talking about the FBI's threat assessment of antiwar.com.
All right, y'all, welcome back to the show.
It's Antiwar Radio on chaos in Austin and the Liberty Radio Network.
We're talking with Marcy Wheeler, aka Empty Wheel.
The website is EmptyWheel.net for her blog, and the article we're discussing is called FBI Conducts Threat Assessment on Antiwar.com.
Journalists for Linking to Publicly Available Document.
And it's sort of a convoluted mess, but I guess long story short is somebody FOIAed all the FBI documents that they could get on the investigations into the Israeli movers.
Arrested after September 11th, and then came connected to that was the story of their threat assessment of antiwar.com, and their investigation specifically of Eric Garris, our founder, and Justin Raimondo, our head writer there.
And now Marcy Wheeler has gone through and broken this thing down best she can through the redactions there to figure out what all this means.
And when we were going out to break, we were talking about the use of the FISA court, and the use of, I guess, what counterintelligence powers rather than typical Fourth Amendment criminal procedure type powers against us.
Marcy?
The report refers to something like 12 to 15 documents that mention antiwar.com.
So what that says is in April 2004, there were, say, 13 or 14 mentions of antiwar.com in FBI files.
And it says, you know, it ranges from something like a guy being investigated for explosives, and the FBI sees two of his hard drives and looked at what he had been surfing online and found that he had been surfing antiwar.com.
You know, that's not that big of a deal, but again, it gives you an indication of the kind of granularity with which antiwar.com is getting implicated in FBI files.
Much more concerning to me is, A, there's a reference in there, for example, to at least one peaceable antiwar demonstration.
The one that's unredacted is one in the lead-up to the Iraq war that took place in the UK.
Granted, it's overseas, but why are they investigating that?
You know, and why did this investigation of a peace rally show up in the FBI files in the United States?
And why is antiwar.com, you know, somebody was handing out an article from antiwar.com at the rally.
You know, that's in an FBI file.
That's really troubling.
The other thing that's even more troubling is that the agent in this case basically said, well, because they have this watch list on their site, we want to make sure that they're not posting things on their site to help out Pakistani terrorists.
So, San Francisco office, we think you should do more investigations to find out whether they're spies.
So, in other words, and the funny thing about it is when Justin first posted that, he clearly pointed to Krypton as his source.
And so, in other words, he posted this document, said, hey, FBI, here's another place where you can get this publicly available document.
And either the FBI agent was so stupid or the FBI, you know, doesn't believe in following links or I don't know, that they decided that the posting of that document, you know, was sufficient ground to move antiwar.com from a threat assessment, which is what we see, to a preliminary investigation, which is what we don't know about.
You know, which is, I assume they're going to FOIA their own files.
If they do that, I would expect, if I were them, to find a bunch more stuff after April 2004 from this preliminary investigation that the FBI at least was internally recommended do.
Yeah, well, that's the problem I have, especially because that's about when I started working around there at antiwar.com and posting the radio show and all that.
But I guess, you know, I call overseas enough on this show that I, well, correct me if I'm wrong, any call to Egypt or any call to Israel or to Pakistan from Texas is tapped by the NSA, right?
It's fair game as long as one of the people on the line is overseas, am I right?
You know, the government is pretty squishy about what they do, what's supposed to, I mean, they can tap anything overseas.
When they tap something in the United States, which they would end up doing because it would be a digital call, it's not, you know, you're not calling up an old-style red phone, you know, everything goes through the United States.
So they're supposed to minimize anything having to do with you because you're an American citizen.
But, you know, the FBI basically never, the FBI and NSA never destroy anything.
So if you call somebody that they consider a threat in Egypt, then they're going to say, well, I want to find out who it was and maybe what the substance of the call was just to find out whether I should, you know, whether I should start tailing Scott now as a counter-terrorist threat.
Well, and that's the problem, right, is if they already have an investigation into us to find out whether we're spies or terrorists or what have you, and then they're tapping my phone in the context of that, I could see, I mean, because as you said, you referred to the stupidity of whoever put this thing together.
I mean, it does kind of read through pretty loudly between the lines here that the guy that wrote this didn't work very hard on it.
He went to the Who Is page.
He talks about what a great mystery it is that Justin goes by his middle name and all this stuff.
I mean, it doesn't seem like there's much of a check and balance as far as, you know, teachers checking their students' work over there at FBI headquarters, you know?
Well, and to some degree, you know, it was just a threat assessment.
So it was the basic level of an FBI agent gets a smart idea and he, on his own initiative, says let's check out this and make sure it's not something that needs to be investigated more.
And there are limits about what the FBI can do at that stage of an investigation.
So, you know, they're supposed to be limited to surfing online and looking in the FBI's own files.
What's interesting about the file that was released is there's a couple of databases that they were searching in that they redacted basically to protect law enforcement methods.
You know, they think if they hadn't redacted those, it would alert you to the fact that any time you show up in that database, it might be information the FBI can get.
So, for example, like Choice Point, your credit report, that kind of thing, might be and probably isn't there.
And they want to pretend that they don't know, that you don't know, that you're not supposed to know that they're looking in those databases.
But what this document is all about is justifying moving up a stage.
And that's when the FBI gets to use more methods against the subject of an investigation.
And we don't know what happened from that point forward.
Well, we need to find out.
Yeah, yeah, I mean, exactly.
I mean, and again, I mean, there are the three parts.
There are the investigated anti-war.com because of the tie, because of the, it appears to be because of this watch list.
It got circulated internally within the FBI both to anti-terrorist investigations but also to the Israeli Movers investigation.
But more importantly, there are the completely redacted investigations or investigations that have a clear counterintelligence approach.
And anti-war.com, even by 2004, had already showed up in their investigative files.
And then after that point, we don't know.
I mean, San Francisco may have said, oh, you're being an idiot.
We're not going to investigate them.
But, I mean, I talked to Eric yesterday, and he said that he and Justin were stopped as they came in from Malaysia in 2005 and questioned about the conference that they were at.
You know, that's the kind of thing that the FBI uses when they're keeping people in kind of ongoing investigations.
And the FBI is notorious for never closing these things.
You know, particularly, I mean, if you look at the investigations they did of the anti-war community in Pittsburgh, they would just keep reopening the files.
I mean, one of the things they did there is every presidential election season, any time anybody protested a presidential convention, they would just reopen the files and with that investigate anti-war people.
I want to nail down one thing here real quick before we run out of time.
Maybe we can't.
I hope we can't.
But just to make sure that I'm trying to wrap my head around this complicated thing, there's two instances where they talk about FISA in these documents.
In one instance, I think you're saying, if I understand you right, that's the terrorism investigation into the Pakistani where anti-war.com was mentioned there.
But then, correct me if I'm wrong, there is a part, too, where they're actually using FISA against us, right?
And do you have any idea based on what they would tell the judge they wanted to investigate further other than what's in here already?
It's not clear they did that.
I mean, that's something that you're going to have to unload on FISA.
There's a reference to four documents that appear to be a counterterrorism investigation that were developed in FISA.
And then there's a warning on the cover page of the document as a whole basically saying there's material in here that was collected using FISA.
And we don't know whether it was the explosives investigation or what, but that also appears on the documents that basically came from surfing the web.
And that I don't understand because you shouldn't need a FISA warrant to get that.
So I can't say one way or another.
Okay.
Yeah, well, good, because that was the confusing part to me.
And so now I don't feel so dumb because it's not clear.
I don't think we can say conclusively one way or another.
And, again, there's enough of the other investigative files that are completely redacted that those might be based on wiretaps.
We don't know.
They probably would be classified higher than secret.
Like nothing in here is classified anything but secret.
So, to some degree, they're not using really super technical investigative methods.
But we don't know.
I think Eric told me yesterday that we don't have to worry because all these documents are scheduled to be released without the redactions in 2045, I think it was.
So we'll just have to wait until then.
And there's actually two rounds of classification on these documents, which I find interesting in and of itself, as if there were a couple of different reasons why they were classified.
But, I mean, I think Justin and Eric would be able to get them.
One of the redactions on here are redactions for privacy reasons.
So anything that's marked a B6 is redacted partly to protect Justin and Eric's privacy.
And if they request the files, they should be able to get some of those unredacted.
But some of them are law enforcement, and they may come back just as redacted.
And did you want to elaborate on the different kinds of secrecy classifications and what was interesting about that?
Oh, just that these documents were classified.
If you look on the report, they were initially classified in August of 2005.
And then they were declassified at some point.
And then they were classified again in September of 2010.
And then they were declassified for this FOIA.
And that just seems kind of weird.
I mean, it's probably more a reflection of sensitivities about the Israeli Movers case.
And it may be that it got reopened again or something, that they keep going back and investigating these Israeli spies who are watching the World Trade Center come down.
But it's interesting.
I don't know what to make of it, but I find it kind of interesting.
All right.
Well, I've got to tell you how much I appreciate your work on this and your time on the show today, Marcy.
All right.
Take care.
All right, everybody.
That's Empty Wheel, Marcy Wheeler.
EmptyWheel.net is the website.
And she's written up this great report about the FBI documents on their threat assessment of Antiwar.com.
FBI conducts threat assessment on Antiwar.com journalists for linking to publicly available documents.
